RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-00851 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: She be paid retroactive Survivor Benefit Plan (SBP) annuity payments. APPLICANT CONTENDS THAT: She was advised that the longer she waited to file for Department of Veteran’s Affairs (DVA) benefits, the higher the pension would be. She knew her salary would not cover her son’s college tuition; therefore, she waited until he completed high school to apply. In 2008, the DVA advised her to file for SBP benefits through the Defense Finance and Accounting Service (DFAS). In January 2009, DFAS informed her that due to the six-year window she was no longer eligible for benefits. DFAS-DE 1340.1-G, Your Guide to Survivor Benefits, dated July 2001, does not reference a “six-year” rule and she was unaware of the rule. The Ombudman’s office informed her that the rule was law and could not be changed. The Board should consider her untimely application in the interest of justice because DFAS refused to reconsider her application and suggested she file an appeal to the AFBCMR. In support of her request, the applicant provides a personal statement, copies of the decedent’s DD Form 214, Certificate of Release or Discharge from Active Duty; death certificate, marriage license and various other documents associated with her request. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 24 April 1987, the applicant and her former spouse were married. On 21 August 2002, the former service member passed away. AIR FORCE EVALUATION: DFAS–RPB-JBJE/CL makes no recommendation. On 26 November 2002, DFAS received confirmation that the former member elected RCSBP for his spouse. At that time an annuity claim package would have been sent to the applicant. An annuitant’s claim for RCSBP and SBP accrues from the date of the member’s death. Thus, the annuitant has six-years from the date to claim the RCSBP/SBP. In order to constitute a claim, the person, in addition to providing the requisite information in accordance with Title 31 United States Code (USC) 31, section 3707(b), must also indicate in some fashion they believe the US government owes them funds. A person’s notification of a member’s death, even in writing, does not constitute a claim for payment. As a result, the applicant’s claim for an annuity filed in 2009, seven-years after her deceased spouse’s death was denied because she did make a claim for the benefits within the six-years prescribed by statute. The Department of Defense Financial Management Regulation (DoDFMR), volume 7 [sic], chapter 46, paragraph 461503 [sic] states, “the effective date of entitlement is the date on which the requirements of law are met, subject to the six-year statute of limitations.” The complete DFAS evaluation, with attachments, is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: She never received an annuity claim package as stated in the DFAS letter. Her spouse’s former unit provided her with the Guide dated July 2001; however, it did not include any process or instruction regarding a claim process. She filed a claim for benefits six years and four months after her spouse passed away not the seven years as quoted in the DFAS memorandum. No reference to Title 31 USC 3702(b) and its provisions and/or limitations could be found in the July 2001 version of the Guide. In fact, she could not find any reference to Title 31 USC 3702 (b) in the most recent 2013 Guard and Reserve Personnel Fact Sheets. She finds it difficult to understand, as a surviving spouse with no knowledge of DFAS practices and procedures and no known receipt of an annuity claim package, how she should have been made to understand and acknowledge the applicability of Title 31 USC, 3702(b) to her request for survivor benefits. Her case warrants further review and consideration. Her spouse indicated, by virtue of his RCSBP election, his desire for his earned benefits to be directed to her in the event of his death. She has a right to these survivor benefits and does not fully understand this to be interpreted as a claim against the US government. Her appeal is based on principle versus an arbitrary application of a timed based law that she had not been informed of, notified of, or otherwise advised of by her deceased spouse’s unit, the Air Force, or DFAS. According to the DFAS letter, dated 4 Aug 14, the only challenge to her receipt of the earned survivor benefits within the RCSBP, is the timing of submission requesting these benefits The applicant’s complete submission is at Exhibit E. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an injustice. After thoroughly reviewing the documentation submitted in support of this appeal, we believe that relief is warranted. In this respect, we note that in order to establish the annuity, the applicant was required to submit a claim for the RCSBP within six years following the former member’s death. However, there is no evidence the applicant submitted an annuity claim within the six-year time limit. As a result, DFAS has refused to pay the applicant an annuity stating that it is untimely, as she did not file a valid claim within the six years prescribed by 31 USC § 3702(b). We note that DFAS states that they received confirmation that the former member elected RCSBP for his spouse on 26 November 2002 and at that time an annuity claim package should have been sent to the applicant. However, the applicant contends that she never received an annuity claim package and was misinformed regarding her entitlement as a beneficiary under the RCSBP. In balancing the equities in this case, we find it more likely than not that the applicant has been the victim of an injustice. Moreover, we do not find it reasonable that she would have knowingly elected not to pursue this important benefit. Therefore, we recommend the decedent’s records be corrected as indicated below. 4. The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the FORMER MEMBER, be corrected to show that on 22 August 2002, the applicant submitted a DD Form 1884, Application for Annuity Under the Retired Serviceman’s Family Protection Plan (RSFPP) and/or Survivor Benefit Plan requesting payment of the Reserve Component Survivor Benefit Plan annuity. The following members of the Board considered AFBCMR Docket Number BC-2014-00851 in Executive Session on 15 May 2015, under the provisions of AFI 36-2603: Vice Chair Member Member All members voted to correct the record as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 18 February 2014, w/atchs. Exhibit B. Applicant’s Available Personnel Records. Exhibit C. Letter, DAFS-RPB-JBJE-CL, dated 10 June 2014. Exhibit D. Letter, SAF/MRBR, dated 4 August 2014. Exhibit E. Letter, Applicant, dated 1 September 2014.